Most
troubling about this attack on Kuhl is the disparity of treatment
it represents.

The
New Glass Ceiling

By
John C. Eastman

Stellar
credentials and a “well-qualified” rating from the American Bar
Association, its highest, following her nomination to the U.S. 9th
Circuit Court of Appeals should have made the road to confirmation
an easy one for Judge Carolyn Kuhl.

But
the path since her nomination on June 22, 2001 — two years ago this
Sunday — has been anything but easy. Indeed, for more than 21 months
she was not even given the courtesy of a hearing by the Senate Judiciary
Committee, and a month after she finally did receive a hearing on
April 1, 2003, her nomination was “reported out” to the Senate floor
on only the barest, 10-9 vote, with not a single Democrat siding
with what Senator Leahy once called the “gold standard” of the ABA’s
well-qualified rating.

Her
credentials are impeccable. Bachelor’s degree in chemistry from
Princeton, graduated cum laude. Law degree from Duke, graduated
with distinction, inducted into the prestigious Order of the Coif,
served as an editor of the Duke Law Journal. Law clerk in California
on the 9th Circuit with then judge, now Supreme Court justice, Anthony
Kennedy. High-ranking official at the U.S. Department of Justice,
serving as deputy solicitor general, deputy assistant attorney general
and then special assistant to the attorney general. Partner in
one of Los Angeles’ most prestigious firms, Munger, Tolles &
Olson. Eight years of service as a judge on the Superior Court
of California for the County of Los Angeles, in both the criminal
and civil divisions.

And
she’s a woman, which means she accomplished all this at a time when
women were just beginning to break through the glass ceiling that
had for far too long limited opportunities for women in the legal
profession.

So
why all the opposition? Some self-proclaimed “women’s groups” have
apparently decided that this impeccably well-qualified woman is
… anti-woman! She might even, they fear, have conservative leanings,
as if the idea that a conservative President might nominate a conservative-leaning
judge was somehow a surprise.

There
are three key pieces of “evidence” in this frontal assault on Judge
Kuhl. First, while a young, 29-year-old attorney at the Department
of Justice with no policy-making authority, Judge Kuhl helped urge
the attorney general to reverse an IRS policy denying tax-exempt
status to Bob Jones University.

She
did so on two grounds, neither of which had anything to do with
defending the university’s racial policies. She believed that Congress,
and not an administrative agency like the IRS, ought to be making
such determinations, and she was concerned lest the IRS use its
power to define “public policy” to deprive tax-exempt status to
all-girls schools (such as the high school Kuhl herself had attended)
or all-women’s colleges. Charles Cooper, who was also at the Justice
Department at the time working with Judge Kuhl on the case, has
stated: “Neither C[arolyn] Kuhl nor anyone else favored such a policy
[of affording tax-exempt status to racially-discriminatory educational
institutions]; to the contrary, all agreed that racially discriminatory
private schools should not be tax-exempt, and draft legislation
to that effect was prepared and proposed to Congress. [Kuhl and
others involved in the case] just believed that if the school was
going to lose the tax exemption that it was entitled to under 501(c)(3),
Congress and not the IRS should make that decision.”

It
was a perfectly defensible legal position that drew praise from
noted constitutional law scholar Larry Tribe who, in a 1984 letter
to then-Attorney General William French Smith, praised the quality
of the brief submitted by the Department of Justice in the case,
noting that he “thought it was a powerful and, in most respects,
entirely compelling legal document.” And it was the position advanced
by Supreme Court Justice Lewis Powell in his concurring opinion
in the case. “[T]he balancing of these substantial interests is
for Congress to perform,” he wrote. “I am unwilling to join any
suggestion that the Internal Revenue Service is invested with authority
to decide which public policies are sufficiently ‘fundamental’ to
require denial of tax exemptions. Its business is to administer
laws designed to produce revenue for the Government, not to promote
‘public policy.’”

Second,
while serving on the Los Angeles Superior Court, Kuhl dismissed
one of several counts in a case brought by a woman alleging the
tort of intrusion after her doctor, while conducting a breast exam,
had invited into the examining room a pharmaceutical company representative
who was observing the doctor’s work as part of his participation
in an oncology mentorship program designed to improve care for breast
cancer patients. Judge Kuhl ruled that the remaining counts could
proceed to trial, and the case ultimately settled with the plaintiff
receiving an undisclosed sum.

Her
ruling dismissing the intrusion count was well-grounded in existing
precedent of the California Supreme Court, which had previously
held that the tort of intrusion encompassed only unconsented-to
physical intrusion. Although her decision dismissing the intrusion
count was reversed on appeal, California Court of Appeals Justice
Paul Turner, who wrote the appellate opinion in the case, has acknowledged
that “a strong argument can be made that [Judge Kuhl] correctly
assessed the competing societal interests the California Supreme
Court requires all jurists in this state to weigh in determining
whether the tort of intrusion has occurred.” Indeed, Justice Turner
has specifically noted, “With all respect to those who have criticized
Judge Kuhl as being insensitive or biased because of my opinion
in Sanchez-Scott, they are simply incorrect.” That opinion
is shared by an overwhelming number of Judge Kuhl’s colleagues on
the Superior Court, ninety-seven of whom joined in a letter to Senators
Orrin Hatch (R-UT), Patrick Leahy (D-VT), Dianne Feinstein (D-CA)
and Barbara Boxer (D-CA), stating: “We have worked side by side
with Judge Kuhl, have attended her judicial education presentations,
talked with her about the law, and received reports from litigants
who have appeared before her. We know she is a professional who
administers justice without favor, without bias, and with an even
hand.”

Finally,
Kuhl had a limited role in the drafting of the brief filed by then-Acting
Solicitor General Charles Fried in Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U.S. 747 (1986), in
which Fried, acting on behalf of President Reagan, urged the Supreme
Court to overturn Roe v. Wade (as well as to uphold various
requirements requiring abortion providers to give their clients
information about abortion alternatives and requiring that a minor
girl obtain the consent of her parents, or a judge, before obtaining
an abortion, provisions that are favored by overwhelming majorities
of Americans and that were subsequently upheld by the Supreme Court).
Her name appears third on the brief, though, so pro-abortion groups
have attributed the position to her.

Most
troubling about this attack on Kuhl is the disparity of treatment
it represents. Charles Fried, whose name appears first on the brief,
has acknowledged that he wrote the “overrule-Roe part of
the brief” himself. Yet his nomination as solicitor general later
that year was unanimously approved by the Senate Judiciary Committee
and he was confirmed by the full Senate by a voice vote, without
debate, by several of the same Democrats now opposing Kuhl, including
Senators Joseph Biden (D-DE), Edward Kennedy (D-MA), and Leahy (D-VT).

Moreover,
the initial draft of the brief was written by John Rogers, whose
name appears second on the brief, yet Rogers is now sitting as a
Circuit Judge on the 6th Circuit. He was not even questioned about
his role in the case during his confirmation hearing, and he was
approved by the Judiciary Committee and confirmed by the full Senate
on a voice vote.

What
are we to make of this opposition to Carolyn Kuhl? It would appear
that, for some reason, the confirmation bar is higher for her than
for other, equally qualified male nominees. Perhaps it is no surprise
that a woman jurist who is not lock step in line with the abortion-on-demand
policies of the National Abortion Rights Action League would not
get NARAL’s support, although Kuhl has vowed that she is “fully
committed to following the precedent established by [Roe v. Wade]
and would do so fairly and properly.”

But
it is somewhat surprising that Senator Dianne Feinstein would go
along — the same Senator Feinstein who was first elected in the
1992 “year of the woman” with a campaign message of sending more
women to the men’s club of the U.S. Senate. Or that Senator Barbara
Boxer, elected that same year with a similar campaign message, would
not at least support a vote on this extremely well-qualified woman
nominee, the same Senator Boxer who just nine months before Kuhl
was nominated held a press conference decrying the “shameful way
that women nominees to the federal judiciary were being treated”
by the Senate and who had vigorously contended for years that every
judicial nominee should receive an up or down vote. “Whether the
delays are on the Republican side or the Democrat side,” she said
in 1998, “let these names come up, let us have debate, let us vote.”

Senator
Boxer finds Judge Kuhl to be “outside the mainstream.” Yet the
overwhelming consensus among people who actually know her is just
the opposite. Two years ago, Vilma Martinez, former director of
the Mexican American Legal Defense Fund and lifelong Democrat, wrote
of Kuhl: “I consider her mainstream…. She’s careful and she’s thoughtful.
She’s been an excellent Superior Court judge, and I think she will
be an excellent 9th Circuit judge.”

A
year ago, a bipartisan group of 23 women judges who work with Kuhl
at the Los Angeles Superior Court wrote in support of her nomination
to the Senate Judiciary Committee: “As sitting judges, we more than
anyone appreciate the importance of an independent, fair-minded
and principled judiciary. We believe that Carolyn Kuhl represents
the best values of such a judiciary.” NAACP attorney Leo James
Terrell, who has litigated before Judge Kuhl, informed Senator Boxer
in May, 2001 that he “vigorously” recommended Judge Kuhl’s appointment
to the 9th Circuit because he found that “Judge Kuhl was fair, impartial,
competent and at all times extremely professional.”

With
such impeccable credentials and widespread testament to a demonstrably
stellar judicial temperament by litigators of every political persuasion,
including leading environmental, trial and civil rights attorneys
— traditional Democrat allies all — Judge Kuhl epitomizes the “mainstream”
of appropriate judicial conduct. The real question for Senators
Boxer and Feinstein is whether they will listen to such long-time
allies and permit a vote on this well-qualified nominee from their
home state, or whether they will heed the slanders being propounded
by NARAL and erect a new glass ceiling against any woman nominee
who does not fully support the most extreme of NARAL’s positions.

Dr.
Eastman is a professor of constitutional law at Chapman University
School of Law and the Director of the Claremont Institute Center
for Constitutional Jurisprudence. A different version of Dr. Eastman’s
article has appeared in the Los Angeles Daily Journal.